Brian Skipworth and Repatriation Commission
[2012] AATA 306
•21 May 2012
[2012] AATA 306
Division VETERANS' APPEALS DIVISION File Number(s)
2011/1487
Re
Brian Skipworth
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 21 May 2012 Place Adelaide The decision of the Repatriation Commission, as affirmed by the Veterans’ Review Board, is varied so as to provide that Mr Skipworth is eligible to be paid disability pension at the special rate provided for in s 24 of the Veterans' Entitlements Act 1986, with effect from 20 August 2010.
..........................[Sgd]..............................................
Senior Member K Bean
CATCHWORDS
VETERANS' ENTITLEMENTS – Whether veteran entitled to special rate of pension – Whether veteran ceased remunerative work by reason of war-caused incapacity alone – Veteran resigned before knee operations but was unable to return to work thereafter – Resignation premature but did not affect ultimate outcome – Alone test satisfied – Decision under review set aside.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 24(1) & (2)
CASES
Willis v Repatriation Commission [2012] FCA 399
Birtles v Repatriation Commission (1991) 24 ALD 545
REASONS FOR DECISION
Senior Member K Bean
21 May 2012
INTRODUCTION
The applicant, Mr Skipworth, served in the Australian Army from 9 July 1970 to 8 January 1972, and undertook operational service in Vietnam between 14 April 1971 and 14 October 1971. He now suffers from a number of medical conditions as a result of his service, including post-traumatic stress disorder (PTSD) and osteoarthritis of both knees.
Following his Army service, Mr Skipworth worked as a lift mechanic for 45 years, retiring in July 2010 when he was 61 years old. It had been his intention to work up until 65, however in the latter years of his employment he had been having increasing difficulty coping with his duties due to the arthritis in both his knees. He accordingly sought medical advice in June 2010, when he was advised that he would need to have knee replacement surgery on both knees. When he received that advice, Mr Skipworth decided to resign from his employment as he did not believe he would be able to continue with his duties as a lift mechanic once he had undergone the knee replacement operations.
Prior to this, on 24 May 2010, Mr Skipworth had lodged a claim for an increase in his disability pension and for pension in respect of disabilities which had not previously been accepted as service related. In response to that claim, a delegate of the respondent accepted liability for his conditions of PTSD and osteoarthritis affecting both knees and also increased his disability pension to 100 per cent of the general rate with effect from 24 February 2010.[1]
[1] T4/25.
On 7 September 2010, after he had retired, Mr Skipworth sought review of that decision by the Veterans’ Review Board (VRB) referring to the fact that since his original claim was lodged, he had ceased employment.[2] However on 11 March 2011, the VRB decided to affirm the decision of the Repatriation Commission.[3] The VRB noted that, following the cessation of his employment Mr Skipworth now sought payment of pension at the special rate, however the Board was not satisfied that he was eligible to be paid pension at the special rate.
[2] T5/40.
[3] T2/5.
On 20 April 2011, Mr Skipworth applied to this Tribunal for review of the decision of the Repatriation Commission, as affirmed by the VRB, contending that he is entitled to pension at the special rate.
LEGAL FRAMEWORK AND ISSUES
In order to establish that he is entitled to the special rate of pension, Mr Skipworth must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between the date when Mr Skipworth first lodged his application, being 24 May 2010[4], and the date of this Tribunal’s decision.[5]
[4] T3/10.
[5] Section 19(9), VE Act.
Section 24 of the VE Act relevantly provides as follows:
24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
There was no dispute between the parties that the conditions suffered by Mr Skipworth and which have been accepted as war-caused relevantly include (as noted above) :
(a)PTSD; and
(b)Osteoarthritis affecting both knees.
There was also no dispute between the parties that Mr Skipworth satisfies ss 24(1)(aa), 24(1)(aab), 24(1)(a), 24(1)(b) and 24(1)(d) and I also accept that he satisfies those provisions. However, Mr Crowe, who appeared as advocate for the respondent, contended that Mr Skipworth did not satisfy the “alone” test prescribed by s 24(1)(c). In particular, he contended that factors other than incapacity from his accepted conditions had contributed to Mr Skipworth’s cessation of work and therefore Mr Skipworth had not ceased remunerative work by reason of his accepted disabilities “alone”.
The application of the “alone” test was recently explained by Bromburg J in Willis v Repatriation Commission [2012] FCA 399 at [20]-[25] as follows:
20.Section 24(1)(c) has two elements. The first asks whether the war-caused incapacity, alone, prevented the veteran from continuing to undertake remunerative work that the veteran had been undertaking. The second element asks whether by reason thereof, the veteran is suffering loss of salary or wages or earnings that the veteran would not be suffering if the veteran were free of the war-caused incapacity. The “alone test” is concerned with the first element. It is to be noted, although not of significance to this case, that an alternative test to the “alone test” is provided by s 24(2)(b). That alternative has often been described as ameliorating the more onerous criterion of s 24(1)(c). The two criteria are separate and distinct though they both deal with the same element – the nexus between the war-caused incapacity and the inability of the veteran to obtain remunerative work. Satisfaction of either criterion will result in the veteran establishing the requisite nexus.
21.The proper interpretation of s 24(1)(c) has been the subject of a great deal of judicial consideration in which differing views have been expressed. Two of the possible interpretations of the words of s 24(1)(c) which comprise the “alone test” were expressed by Dowsett J in Moorcroft v Repatriation Commission [1999] FCA 862; (1999) 58 ALD 143 at [20] as follows:
They are:-
(a) That these words look to the extent of the war-caused condition to ascertain whether it is actually preventing the veteran from working in his previous employment; or
(b) That they are designed to exclude a claim where, notwithstanding such a condition, other factors (including other medical conditions) prevent such employment.
22.Although Dowsett J preferred the first interpretation, the preponderance of authority (which I will follow) supports the second: Cavell v Repatriation Commission (1988) 9 AAR 534 at 538-539; Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329 at 22; Repatriation Commission v Van Heteren [2003] FCA 888; (2003) 75 ALD 703 at [24]; and generally, Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1, and Repatriation Commission v Hendy [2002] FCAFC 424.
23.The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
24.Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
25.The assessment to be made asks whether absent the war-caused reason, another reason (or other reasons) is a reason for the veteran’s inability to engage in remunerative work: Repatriation Commission v Smith (1987) 15 FCR 327 at 337 (Beaumont J, with whom Northrop and Spender JJ agreed); Byrne v Repatriation Commission [2001] FCA 1134 at [8]- [10] (Gyles J).”
As Bromberg J also pointed out, in assessing whether the veteran has been prevented from working;
“… it is necessary to identify the work that the veteran has been undertaking. In that respect, and as a number of authorities have stated, it is the type of work which the veteran had been doing, not the veterans last job, which is relevant: Smith at 333; Hendy at [36]; Repatriation Commission v Butcher [2007] FCAFC 36 at [13](Tamberlin, Nicholson and Tracey JJ).”
It follows that the issues for my determination are:
(a)what was remunerative work or type of work Mr Skipworth had been undertaking?; and
(b)whether, by reason of his war-caused incapacity alone, Mr Skipworth has been prevented from continuing to undertake that work?
I propose to address each of those issues in turn, having regard to the evidence before me and the contentions of the parties.
WHAT WAS THE REMUNERATIVE WORK THAT MR SKIPWORTH WAS UNDERTAKING?
In his statement which was tendered into evidence,[6] Mr Skipworth explained that he was an electrician by trade but had been employed as a lift mechanic for the past 45 years. He further explained that although the name of the company had changed, he had effectively been working for the same employer for the whole of that period. At the time of his retirement the company by whom Mr Skipworth was employed was Otis Elevator Company.
[6] Exhibit 2.
As to the specific duties of his employment and what those required of him physically, Mr Skipworth stated as follows:
“My basic duties as a Lift Mechanic involved fixing escalators and lifts, installing new lifts and escalators, re-roping and changing of escalator chains and steps, wiring, installation and replacement of door frames, lift doors, changing burnt out hauling motors and generators.
My work involved a lot of climbing ladders and stairs, kneeling on concrete slabs, working on scaffolding, climbing up and down pit wells and on long steel beams.”[7]
Mr Skipworth’s oral evidence was consistent with his statement in this regard.
[7] At [10], [11].
In light of his evidence, which I accept, I find that the remunerative work which Mr Skipworth was undertaking for the purposes of s24 was work as a lift mechanic which involved the duties and the specific physical activities outlined above.
WAS MR SKIPWORTH PREVENTED, BY HIS ACCEPTED DISABILITIES ALONE, FROM CONTINUING TO UNDERTAKE THE REMUNERATIVE WORK THAT HE WAS UNDERTAKING?
I will first discuss the most salient aspects of the evidence directed to this issue, before proceeding to consider what conclusions should be reached on that evidence.
Mr Skipworth’s evidence
In both his statement and oral evidence, Mr Skipworth stated that on or about 30 June 2010, he took four weeks of long service leave. He said part of the reason for this was that he had been having difficulties with his knees for quite some time and thought that having some time off would be good for his knees. In his statement he said:
“Whilst I was on my long service leave, I decided it was time to bite the bullet and retire. My knees were not improving and I decided I could no longer put up with the daily pain I would experience whilst at work.
I officially retired on 22 July 2010 but then I took a further 4 weeks of long service leave and had my remaining long service leave paid out to me.”[8]
[8] At [17] & [18].
He elaborated further on what prompted his retirement in his oral evidence. He said that he made the decision to retire after seeing Dr Menz, an orthopaedic surgeon.[9] He went on to explain:
“I’d been seeing Dr Pope about my knees, and he’d been giving me cortisone injections into my knee – kneecaps, my right knee. And they weren’t doing any good, so he sent me for a x-ray, and he gave me a referral to see Dr Mintz[sic].”[10]
[9] Transcript of 31.1.12, p5.
[10] Transcript of 31.1.12, p5.
Mr Skipworth went on to say that when he saw Dr Menz, Dr Menz told him that his right knee “was completely gone” and that he would need a full knee replacement. Dr Menz further advised him that his left knee would also need to be replaced within twelve months.
As to the significance of this in terms of his retirement, Mr Skipworth said:
“Well, I told him that that – it virtually ruined my work prospects, and that I would have to retire because I could not do the work. I couldn’t climb – do – climb stairs and kneel and climb scaffolding with two artificial knees.”[11]
[11] Transcript 31.1.12, p6.
Mr Skipworth further explained that he believed he would not be able to undertake the duties he had been doing with two artificial knees, partly because one of his wife’s friends had had a partial knee replacement and that person subsequently had trouble with stairs and could not kneel. He said:
“So I took it that I’d be in exactly the same boat.”[12]
[12] Transcript 31.1.12, p11.
Mr Skipworth acknowledged at one point in his evidence that Dr Menz did not tell him that he would not be able to work, stating “No, he didn’t say anything about not being able to work. He never mentioned work.”[13] He also conceded that he did not discuss the effect that the total knee replacements might have on his work with his general practitioner, Dr Pope. He stated:
“No. I didn’t think to say anything about – about it. I just took it that I wouldn’t be able to do the – do the work, or climbing ladders and scaffolding, because you never – I never get full bend and stretch on your knees. Well, I didn’t know at the time, but I know now.”[14]
[13] Transcript 31.1.12, p11.
[14] Transcript 31.1.12, p12.
However when Mr Skipworth was re-examined in relation to his discussions with his doctors prior to his retirement, he gave slightly different evidence. In answer to the further questions put to him, he said that once he had been told he would require two knee replacements, he had told Dr Pope that he thought it likely he would not be able to cope with his work after the operations.[15] He also said that Dr Pope had told him he “more than likely would not be able to cope.”[16]
[15] Transcript 31.1.12, p20.
[16] Transcript 31.1.12, p20
Mr Skipworth acknowledged during his evidence that he had not spoken to Otis about other duties he may be able to undertake after having the knee replacement operations. He explained that so far as he was aware, “There were no other duties there.”[17] He said:
Either you were a lift mechanic or you’re a – a boss, or storeman. And they had a storeman, and all the bosses’ jobs were filled. I was not boss material, so there was no other jobs there for you. I’m sure they weren’t going to make a job specially for me to do nothing.”[18]
[17] Transcript 31.1.12, p19.
[18] Transcript 31.1.12, p19.
He also stated during his evidence that he regarded the principal reasons for his retirement as being his PTSD and his knees, in roughly equal proportions.
Mr Skipworth was also questioned at the hearing about his retirement plans and stated that until he was advised of the need for knee replacements, he had been intending to work until 65. His wife later confirmed in her evidence that that was her understanding.
Mr Skipworth was also asked about some problems he had had with his back, and acknowledged that he had seen Dr Pope about this. He said Dr Pope had told him that he had a pinched nerve in his back and this had occurred twice. He said he had first seen Dr Pope about this four or five years ago. However he had since lost weight on Dr Pope’s advice and his back had improved.[19]
[19] Transcript 31.1.12, p14.
Medical Evidence
Dr Menz and Dr Pope also each gave evidence at the resumed hearing in this matter.
Dr Menz confirmed that he had seen Mr Skipworth on 23 June 2010, at which stage Mr Skipworth had severe disabling pain in his right knee as a result of severe arthritis. Accordingly Dr Menz carried out a total knee replacement on Mr Skipworth’s right knee on 20 September 2010. He confirmed that he had subsequently carried out a total knee replacement on Mr Skipworth’s left knee as well.
When Dr Menz was asked whether he had discussed the work implications of the operations with Mr Skipworth, he said he had no notes of this but it was his practice to discuss employment implications with patients prior to undertaking knee replacements. He also said that as a general rule, the main restrictions resulting from a total knee replacement were that a patient must not run or jump and must avoid impacts to the knee. He also added that the large majority of people who have had a total knee replacement cannot kneel. He said it was also common to have difficulty working in confined spaces and squatting. Dr Menz also confirmed that as a result of the knee replacements, Mr Skipworth had been left with quite significant limitation of movement of his knees which made it impossible for him to squat fully.
Dr Pope confirmed that Mr Skipworth had been a patient of his for thirty two years. He said that as at mid-2010, he would have hoped that Mr Skipworth could work after his knee replacements. However he would have considered it unlikely that Mr Skipworth could do the type of work he had been doing previously with two knee replacements. Although he had no specific recollection of discussing the issue with him, he said that he would have been likely to advise Mr Skipworth that the chances of him returning to work after the knee replacements were limited, but it would be wise to wait and see how his knees were after the knee replacements. However he said in the event, Mr Skipworth had had a relatively poor outcome as a result of the knee replacements, and as a consequence was unable to return to working as a lift mechanic.
In relation to Mr Skipworth’s back, Dr Pope confirmed that Mr Skipworth had complained of back pain in August 2007 but this had subsequently settled. The next time Mr Skipworth had reported back pain to Dr Pope was in March 2011 when he had complained of low back pain and sciatica.
Consideration
In his closing submissions, Mr Crowe did not press an earlier contention that Mr Skipworth’s back pain and pre-existing retirement plans had contributed to his decision to retire when he did.[20] On the evidence before me, I consider that he was right not to do so as I am satisfied Mr Skipworth had been intending to work till 65. I am also satisfied that, though he had an occurrence of back pain in 2007, this subsequently settled and was not a consideration for him when he retired in mid-2010.
[20] Respondent’s Statement of Facts, Issues and Contentions dated 3 November 2011.
However Mr Crowe did press a submission that Mr Skipworth made his decision to retire on the basis of little real evidence and at a point in time when it was not clear he would not be able to work after his knee replacements. Mr Crowe submitted that, in the absence of clear medical advice to the effect that he would not be able to continue working after the knee replacement operations, Mr Skipworth nevertheless formed the view that he would not be able to work and retired on that basis. Mr Crowe contended that, although the evidence was to the effect that, in the event, Mr Skipworth could not have returned to his full duties as a lift mechanic after the knee replacement operations, there was no way he could have anticipated this outcome. In other words, his retirement was premature and his decision to retire when he did and in the absence of medical advice that he should do so, was an independent contributing factor to Mr Skipworth ceasing to engage in remunerative work. Therefore it was a contributing cause to Mr Skipworth ceasing work which prevented him from satisfying the “alone” test.
Mr Crowe also contended that there was no evidence that in the event Mr Skipworth found he was unable to do the full range of his usual duties after his knee replacements, that would necessarily have ended his employment. Mr Crowe submitted that there was an onus on Mr Skipworth to establish that he was unable to do his full range of duties, and further that his inability to do so meant that he could not have continued with his employment.
Significantly, Mr Crowe conceded that it had subsequently became apparent that the condition of Mr Skipworth’s knees following the total knee replacements would not allow him to return to his previous duties. However he maintained the submission that nevertheless, Mr Skipworth’s premature decision to retire at a point when he could not have known this would be the case, was a contributing cause to Mr Skipworth’s retirement sufficient to prevent him from satisfying the “alone” test.
I acknowledge that there is some force in many of these submissions. I accept that Mr Skipworth could not have known prior to undergoing the knee replacement operations that he would not be able to work subsequent to the operations, nor did he have medical advice to that effect. Although Mr Skipworth gave some evidence to the effect that Dr Pope had agreed with him that he was unlikely to be able to return to his previous duties after the operations, I am not satisfied that he has a good recollection of his discussions with Dr Pope prior to the operations. I therefore prefer Dr Pope’s evidence on this issue and I am satisfied that neither Dr Pope or Dr Menz advised Mr Skipworth to retire, or unequivocally supported his decision to retire when he did.
As it was not based on medical advice, Mr Skipworth’s decision to retire prior to the operations therefore had the potential to become an independent cause of his retirement, separate from the incapacity resulting from the condition of his knees. Certainly, if the medical evidence before me had been to the effect that after the operations, Mr Skipworth could have returned to his previous duties, in my view his premature decision to retire would have prevented him from satisfying the “alone” test. Under that scenario, his decision to retire would have been an independent contributing cause to his cessation of work, operating independently of and in addition to any incapacity resulting from the state of his knees.
In the particular circumstances of this matter however, it is apparent on the medical evidence that Mr Skipworth’s belief that the state of his knees after the knee replacement operations would not allow him to continue with his usual duties, proved to be correct. Both of the doctors, most significantly Dr Menz, gave evidence to this effect and Mr Crowe conceded that this was established on the evidence. Therefore the question which arises is whether, given that Mr Skipworth’s premature assessment of his situation proved to be accurate, the fact that he resigned prematurely and in the absence of medical advice that he should do so is nevertheless an independent operative cause of him having ceased to engage in remunerative work such as to prevent him from satisfying the “alone” test.
This is a difficult question. Ultimately however, I have concluded that whilst Mr Skipworth’s decision to retire was clearly premature having regard to the state of affairs at the time he did retire, it is clear on the evidence that he could not have returned to his duties as a lift mechanic in any event. It is clear that the state of his knees after his knee replacement operations would have prevented him from carrying out at least some important aspects of those duties. It therefore follows that, as things have transpired, even if he had not retired, Mr Skipworth would not have been able to return to his usual duties as a lift mechanic in any event. Thus the condition of his knees following the knee replacement surgery prevented him from continuing with those duties, regardless of his decision to retire.
It follows as a matter of logic in my view that Mr Skipworth’s decision to retire when he did did not actually have any real causal effect on the ultimate outcome. To use the words of Bromberg J, it was not “another reason which, independently of the war-caused reasons, is preventing the veteran from working”.[21] The ultimate outcome, that is that Mr Skipworth was unable to return to his work as a lift mechanic after his first knee replacement, would inevitably have eventuated in any case, whether Mr Skipworth resigned or not. In that sense, the condition of his knees dictated that outcome, regardless of his decision to retire.
[21] Willis (supra) at [24].
In those circumstances, in my view it would be somewhat artificial and at odds with reality to conclude that Mr Skipworth’s decision to retire made an independent contribution to his ultimate cessation of work. It is clear on the evidence that he could not have returned to his usual work as a lift mechanic in any event. In those circumstances, in my view it cannot be said that his decision to retire had any real impact on his cessation of work in mid-2010. In support of my reasoning in this regard, I consider there to be a relatively strong analogy between the circumstances of this matter and those considered by Hill J in Birtles v Repatriation Commission (1991) 24 ALD 545. In that matter, his Honour concluded that if, as a matter of fact, Mr Birtles was unable to work, the fact that he had retired to the south coast of New South Wales, away from employment opportunities, was no barrier to him satisfying the requirements of s 24.
As I have noted above, Mr Crowe also submitted that it was not established on the evidence that Mr Skipworth could not have returned to modified or different duties after his knee operations. However Mr Skipworth gave evidence, which I accept, that he would not have been promoted and there were no other duties available which he could have done at Otis. Further and in any event, it is abundantly clear on the evidence that the work Mr Skipworth had previously undertaken was as a lift mechanic entailing the range of physical tasks described earlier in these Reasons. Accordingly it is that work to which I must have regard in assessing whether he was prevented from continuing to undertake remunerative work, and it is clear on the medical evidence that after his knee replacement operations, Mr Skipworth could not continue to undertake that work, as it involved a number of activities he could no longer do, including kneeling, squatting, climbing ladders, and working on scaffolding and in confined spaces. For those reasons, I am not persuaded that Mr Skipworth has failed to establish he was unable to continue with the remunerative work he was previously undertaking, by reason of his failure to explore alternative duties with Otis.
I have accordingly concluded that Mr Skipworth was prevented by his accepted disabilities, namely osteoarthritis of his knees and PTSD, “alone”, from continuing to undertake the work he had been undertaking, as a lift mechanic. Having regard to Mr Skipworth’s evidence as to the difficulty he was having with his knees prior to consulting Dr Menz in June 2010, and Dr Menz’s evidence as to the state of Mr Skipworth’s right knee on 23 June 2010, I am satisfied that he was so prevented from the date of the end of his employment with Otis on 19 August 2010,[22] and that he was also suffering a loss of earnings by reason of his war-caused incapacity from that date. He is therefore eligible to receive disability pension at the special rate from 20 August 2010 and I have decided to vary the decision under review accordingly.
[22] T2/7, T15/69.
DECISION
The decision of the Repatriation Commission, as affirmed by the VRB, is varied so as to provide that Mr Skipworth is eligible to be paid disability pension at the special rate provided for in s 24 of the VE Act, with effect from 20 August 2010.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean .....................[Sgd]...................................................
Administrative Assistant
Dated 21 May 2012
Date(s) of hearing 31 January and 16 March 2012 Counsel for the Applicant Mr N Floreani Advocate for the Applicant Ms B Tapscott Solicitors for the Applicant Tindall Gask Bentley Counsel for the Respondent Mr A Crowe Solicitors for the Respondent Veterans' Affairs Advocacy Section
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